Two Steps Forward, One Step Back: Religious Freedom

Recent decisions highlight the rights of Ontarians to enjoy access to public services without imposition of religion. A municipal decision, on the other hand, encourages superstition, under the banner of cultural sensitivity.

In an Aug. 16 decision, the Human Rights Tribunal of Ontario (HRTO) ruled the practice of distributing Gideon bibles in schools discriminates against non-religious students. And in May, the tribunal again ruled in favour of a complainant who opposes prayer before council meetings. Neither complainant sought compensation; both asked for policy changes.

The issue in R.C. v. District School Board of Niagara, was whether Gideon bibles distributed in classrooms — to the exclusion of other religious creeds’ material — violated the Ontario Human Rights Act. HRTO associate chair David Wright found that it did.

“Discrimination because a person is atheist falls within the definition of creed,” Wright found.

“The Board discriminated against the applicants through its policy permitting only the Gideons to distribute religious literature in schools, and that the new policy does not comply with the Code. The Code does not require, however, that the public schools be free of optional religious activities outside classroom hours, so long as all creeds are treated with substantive equality. I leave to the elected Board trustees in Niagara to decide whether to continue to permit distribution of literature from creeds in their schools and if so, to design a new policy that complies with the Code. I remain seized to deal with any disputes that may arise over the next year about whether any new policy complies with the Code.”

The Ontario Human Rights Commission and Canadian Civil Liberties Association intervened in the case.

Encouraging Policy Change

The applicants, “S.C.,” a student and “R.C.,” her parent, complained that their school board had a policy that representatives of one creed and no others, were permitted to distribute religious texts to students in the schools.

The father launched the legal challenge after the principal of his daughter’s school sent home a note and a permission slip for her to get a Christian bible after class, in November 2009. The father proposed that he be able to distribute another book, “Just Pretend: A Freethought Book for Children,” that discusses non-theism and rationalism. It is published by the Freedom From Religion Foundation.

“He believed that other parents might be upset about being asked to consent to their children receiving such materials in the same way he felt offended in being asked to consent to his children receiving the Gideons’ materials, and it would encourage a change in policy to eliminate the distribution of religious texts,” the decision notes.

Neither book was distributed. When the father made a second request to hand out Just Pretend in early 2010, the board declined.

On the issue of whether atheism counts as a “creed,” protected by the Human Rights Code, Wright found in R.C.’s favour.

“In my view, a purposive interpretation of the prohibition on discrimination because of ‘creed’ in the code includes a prohibition on discrimination because a person is atheist,” the associate chair found.

Right Not To Believe Protected

Wright references international human rights law and quotes from R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, the “seminal case on freedom of religion.” The Supreme Court held that protection of freedom of religion and conscience under the Charter includes both belief and non-belief.

Wright found:

“The difficulty with the respondent’s position is illustrated by the following example of its consequences. If an employer decided to dismiss all employees who did not share the religious faith of the president of the company, those who belonged to other religions would have a claim, but not those who are atheist, agnostic or who do not have a view on religion. It would allow the province, a service provider or an employer to enforce particular views and practices on those with atheist views or no clear views about such matters, but not on those who actively believe in a different religion. This is not a purposive interpretation of the code.”

Wright found that allowing only the Gideons to distribute literature in Niagara schools was discriminatory. While the board has revised its policy to over the distribution of religious materials, Wright found the changes insufficient, particularly given its restriction to “recognized sacred texts.”

A revised policy should include allowing for the distribution of atheist materials — not despite the likelihood for controversy, but precisely because of it, Wright found.

“I understand that some parents and students may not agree with some of the content of atheist literature like Just Pretend. However, the applicant and others do not agree with some of the content of the Gideon Bible. If the board decides to have a policy permitting distribution of religious literature, it must be prepared to accept that some parents and students might object to materials that others, with parental permission, are receiving. If it is prepared to distribute permission forms proposing the distribution of Christian texts to committed atheists, it must also be prepared to distribute permission forms proposing the distribution of atheist texts to religious Christians. It cannot design its criteria in a way that would permit communication of materials setting out their beliefs by some, but not all creeds.”

Just Stand Up, Fit In

The Niagara decision cites a decision related to prayer before council meetings. Freitag v. Penetanguishene (Town), 2013 HRTO 893 (CanLII) found that “The applicant does not have to declare a specific creed or belief system in order to be protected from the imposition of the religious beliefs and observances of others in certain contexts.”

In May, the OHRT ordered the Corporation of the Town of Penetanguishene to stop reciting the prayer at the beginning of council meetings.

Henry Freitag argued the practice discriminates against him even though the council doesn’t oblige people to participate in it. The town had stopped reciting the “Lord’s Prayer” after Freitag launched a challenge based on the Charter of Rights and Freedoms in 1999. Council introduced the non-denominational version instead. Freitag found the new prayer troubling because his decision to remain seated exposes him as a non-believer.

Accommodation to the Point of Hardship

“There was no evidence that it would constitute undue hardship to accommodate the applicant and other non-believers by opening council meetings with something other than the recitation of a prayer,” adjudicator Leslie Reaume found.

“This is also not a case where any balancing of rights is required. While the Town Prayer is arguably broader than the Lord’s Prayer and may resonate with a number of faith communities, there is no right under the Code to have a prayer of any kind recited at the opening of council meetings which one might be required to balance against the impairment to the applicant’s rights which flows from this practice. The Mayor and council members who participate in the recitation of the prayer are doing so as public officials acting in their public roles and not private citizens. There is no necessity, therefore, to accommodate their personal religious beliefs by permitting them to recite the prayer at the opening of council meetings despite the impact on people of other faiths and non-faiths.”

Council “Banishes” Numbers

On the other end of the rational spectrum, the Town of Richmond Hill council voted in 2013 to avoid using the number “four” in new street addresses, over superstitious concerns.

“The number four (4) will no longer be used as an address number going forward,” the Town says. “It also will allow existing number four (4) addresses to apply to change their house number with a suffix (e.g. 4b), with the property owner paying for all costs associated with such a change. The motion specifically addresses number four (4) properties exclusively, and does not include use of the numeral 4 in other larger numbers such as 14, 24, 40 or 44.”

Residents of the town’s Chinese community had complained the number four sounds similar to the word “death” in Mandarin and Cantonese. Some residents suggested home values are affected by the numbering. Richmond Hill had already moved to avoid using the number 13 in street addresses, because it is considered unlucky by some people.

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